Bill Start

An act to amend Sections 667.5 and 2933.5 of the Penal Code, relating to violent felonies.

LEGISLATIVE COUNSEL'S DIGEST

SB 75, as amended, Bates.
Violent felonies.

Existing law, as amended by Proposition 21 as approved by the voters at the March 7, 2000, statewide primary election and by Proposition 83 of the November 7, 2006, statewide general election, classifies certain felonies as violent felonies for purposes of various provisions of the Penal Code. Existing law generally imposes an additional one-year term for a felony and 3-year term for a violent felony for each prior separate prison term served for a felony or a violent felony, respectively. The Legislature may amend this initiative statute by a statute passed in each house by a 2/3 vote.

This bill would additionally define, among other crimes, the offenses of vehicular manslaughter, human trafficking involving a minor, assault with a deadly
weapon, solicitation of murder, rape under various specified circumstances, and grand theft of a firearm as violent felonies for purposes of imposing specified sentence enhancements. The bill would also make conforming changes.

Because this bill would increase the duties of local officials in regard to prosecuting these crimes, it would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Digest Key

Vote:
2/3
Appropriation:
NO
Fiscal Committee:
YES
Local Program:
YES

Bill Text

The people of the State of California do enact as follows:

SECTION 1.

Section 667.5 of the Penal Code is amended to read:

667.5.

Enhancement of prison terms for new offenses because of prior prison terms shall be imposed as follows:

(a) If one of the new offenses is one of the violent felonies specified in subdivision (c), in addition to and consecutive to any other prison terms therefor, the court shall impose a three-year term for each prior separate prison term served by the defendant if the prior offense was one of the violent felonies specified in subdivision (c) or (d). However, no additional term shall be imposed under this subdivision for any prison term served prior to a period of 10 years in which the defendant remained free of both prison custody and the commission of an offense which results in a felony conviction.

(b) Except if subdivision (a) applies, if the new
offense is any felony for which a prison sentence or a sentence of imprisonment in a county jail under subdivision (h) of Section 1170 is imposed or is not suspended, in addition and consecutive to any other sentence therefor, the court shall impose a one-year term for each prior separate prison term or county jail term imposed under subdivision (h) of Section 1170 or if the sentence is not suspended for any felony. An additional term shall not be imposed under this subdivision for any prison
term or county jail term imposed under subdivision (h) of Section 1170 or if the sentence is not suspended prior to a period of five years in which the defendant remained free of both the commission of an offense which results in a felony conviction, and prison custody or the imposition of a term of jail custody imposed under subdivision (h) of Section 1170 or any felony sentence that is not suspended. A term imposed under paragraph (5) of subdivision (h) of Section 1170, wherein a portion of the term is suspended by the court to allow mandatory supervision, shall qualify as a prior county jail term for the purposes of the one-year enhancement.

(c) For the purpose of this section, “violent felony” shall mean any of the following:

(1) Murder or voluntary
manslaughter.

(2) Mayhem.

(3) Rape as defined in paragraph (2) or (6) of subdivision (a) of Section 261 or paragraph (1) or (4) of subdivision (a) of Section 262.

(4) Sodomy as defined in subdivision (c) or (d) of Section 286.

(5) Oral copulation as defined in subdivision (c) or (d) of Section 288a.

(6) Lewd or lascivious act as defined in subdivision (a) or (b) of Section 288.

(7) Any felony punishable by death or imprisonment in the state prison for life.

(8) Any felony
in which the defendant inflicts great bodily injury on any person other than an accomplice which has been charged and proved as provided for in Section 12022.7, 12022.8, or 12022.9 on or after July 1, 1977, or as specified prior to July 1, 1977, in Sections 213, 264, and 461, or any felony in which the defendant uses a firearm which use has been charged and proved as provided in subdivision (a) of Section 12022.3, or Section 12022.5 or 12022.55.

(9) Any robbery.

(10) Arson, in violation of subdivision (a) or (b) of Section 451.

(11) Sexual penetration as defined in subdivision (a) or (j) of Section 289.

(12) Attempted murder.

(13) A violation of Section 18745, 18750, or 18755.

(14) Kidnapping.

(15) Assault with the intent to commit a specified felony, in violation of Section 220.

(16) Continuous sexual abuse of a child, in violation of Section 288.5.

(19) Extortion, as defined in Section 518, which would constitute a felony violation of Section
186.22.

(20) Threats to victims or witnesses, as defined in Section 136.1, which would constitute a felony violation of Section 186.22.

(21) Any burglary of the first degree, as defined in subdivision (a) of Section 460, wherein it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary.

(22) Any violation of Section 12022.53.

(23) A violation of subdivision (b) or (c) of Section 11418. The Legislature finds and declares that these specified crimes merit special consideration when imposing a sentence to display society’s condemnation for these extraordinary crimes of violence against the
person.

(d) For purposes of this section, only “violent felony” also means any of the following:

(1) Vehicular manslaughter, as defined in Section 191.5 and subdivision (c) of Section 192. 192, if the violation is a felony.

(3) Battery with infliction of serious bodily injury, as defined in subdivision (d) of Section 243.
243, if the violation is a felony.

(4) A violation of Section 244.

(5) Assault with a deadly weapon other than a firearm, in violation of paragraph (1) of subdivision (a) of Section 245. 245, if the violation is a felony.

(6) Assault with a deadly weapon other than a firearm upon a peace officer or firefighter, in violation of subdivision (c) of Section 245.

(7) Discharging a firearm, in violation of Section 246.
246, if the violation is a felony.

(8) Rape, in violation of paragraph (1), (3), (4), or (7) of subdivision (a) of Section 261, or paragraph (2), (3), or (5) of
subdivision (a) of Section 262.

(9) Sodomy, as defined in subdivision (f) of Section 286. (f), (g), (i), (j), or (k) of Section 286, or subdivision (h) of 286 if the offense is a felony.

(10) Oral copulation, as defined in subdivision (f) (f), (g), (i), (j), or (k) of Section 288a. 288a, or
subdivision (h) of Section 288a if the offense is a felony.

(11) Sexual penetration, as defined in subdivision (b), (d), (e), (f), or (g) of Section 289, or subdivision (c) of Section 289 if the offense is a felony.

(11)

(12) A violation of Section 273d. 273d, if the violation is a felony.

(12)

(13) A violation of Section 273.5. 273.5, if the offense is a felony.

(13)

(14) Arson, as defined in subdivision (c) or (d) of Section 451.

(14)

(15) Grand theft of a firearm, as defined in paragraph (2) of subdivision (d) of Section 487.

(15)

(16) Solicitation of murder, as defined in subdivision (b) of Section 653f.

(16)

(17) Assault by a prison inmate, in violation of Section 4501.

(17)

(18) A violation of Section 4503.

(18)

(19) Personally using a firearm in the commission of a felony, as defined in subdivision (b) of Section 12022.

(19)

(20) A violation of Section 18740.

(e) For the purposes of this section, the defendant shall be deemed to remain in prison custody for an offense until the official discharge from custody, including any period of mandatory supervision, or until release on parole or postrelease community supervision, whichever first occurs, including any time during which the defendant remains subject to reimprisonment or custody in county jail for escape from custody or is reimprisoned on revocation of parole or postrelease community supervision. The additional penalties provided for prior prison terms shall not be imposed unless they are charged and admitted or found true in the action for the new offense.

(f) The additional penalties provided for prior prison terms shall not be imposed for any felony for which the defendant did not serve a prior separate term in state prison or in county jail under subdivision (h) of Section 1170.

(g) A prior conviction of a felony shall include a conviction in another jurisdiction for an offense which, if committed in California, is punishable by imprisonment in the state prison or in county jail under subdivision (h) of Section 1170 if the defendant served one year or more in prison for the offense in the other jurisdiction. A prior conviction of a particular felony shall include a conviction in another jurisdiction for an offense which includes all of the elements of the particular felony as defined under California law if the defendant served
one year or more in prison for the offense in the other jurisdiction.

(h) A prior separate prison term for the purposes of this section shall mean a continuous completed period of prison incarceration imposed for the particular offense alone or in combination with concurrent or consecutive sentences for other crimes, including any reimprisonment on revocation of parole which is not accompanied by a new commitment to prison, and including any reimprisonment after an escape from incarceration.

(i) Serving a prison term includes any confinement time in any state prison or federal penal institution as punishment for commission of an offense, including confinement in a hospital or other institution or facility credited as service of prison time in the jurisdiction of the
confinement.

(j) For the purposes of this section, a commitment to the State Department of Mental Health, or its successor the State Department of State Hospitals, as a mentally disordered sex offender following a conviction of a felony, which commitment exceeds one year in duration, shall be deemed a prior prison term.

(k) For the purposes of this section, when a person subject to the custody, control, and discipline of the Secretary of the Department of Corrections and Rehabilitation is incarcerated at a facility operated by the Division of Juvenile Justice, that incarceration shall be deemed to be a term served in state prison.

(l) (1) Notwithstanding subdivisions (e) and (h) or any other provision
of law, if one of the new offenses is committed while the defendant is temporarily removed from prison pursuant to Section 2690 or while the defendant is transferred to a community facility pursuant to Section 3416, 6253, or 6263, or while the defendant is on furlough pursuant to Section 6254, the defendant shall be subject to the full enhancements provided for in this section.

(2) This subdivision does not apply if a full, separate, and consecutive term is imposed pursuant to any other provision of law.

SEC. 2.

Section 2933.5 of the Penal Code, as amended by Section 19 of Chapter 285 of the Statutes of 2011, is amended to read:

2933.5.

(a) (1) Notwithstanding any other law, every person who is convicted of any felony offense listed in paragraph (2), and who previously has been convicted two or more times, on charges separately brought and tried, and who previously has served two or more separate prior prison terms, as defined in subdivision (h) of Section 667.5, of any offense or offenses listed in paragraph (2), shall be ineligible to earn credit on his or her term of imprisonment pursuant to this article.

(2) As used in this subdivision, “felony offense” includes any of the following:

(F) Assault with vitriol, corrosive acid, or caustic chemical of any nature, as described in Section 244.

(G) Rape, as defined in paragraph (2) or (6) of subdivision (a) of Section 261 or paragraph (1) or (4) of subdivision (a) of Section 262.

(H) Sodomy by
means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, as described in subdivision (c) of Section 286.

(I) Sodomy while voluntarily acting in concert, as described in subdivision (d) of Section 286.

(J) Lewd or lascivious acts on a child under the age of 14 years, as described in subdivision (b) of Section 288.

(K) Oral copulation by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, as described in subdivision (c) of Section 288a.

(L) Continuous sexual abuse of a child, as described in Section 288.5.

(M) Sexual penetration, as described in subdivision (a) of Section 289.

(N) Exploding a destructive device or explosive with intent to injure, as described in Section 18740, with intent to murder, as described in Section 18745, or resulting in great bodily injury or mayhem, as described in Section 18750.

(O) Any felony in which the defendant personally inflicted great bodily injury, as provided in Section 12022.53 or 12022.7.

(b) A prior conviction of an offense listed in subdivision (a) shall include a conviction in another jurisdiction for an offense which includes all of the elements of the particular felony as defined under California law.

(c) This section shall apply whenever the present felony is committed on or after the effective date of this section, regardless of the date of commission of the prior offense or offenses resulting in credit-earning ineligibility.

(d) This section shall be in addition to, and shall not preclude the imposition of, any applicable sentence enhancement terms, or probation ineligibility and habitual offender provisions authorized under any other section.

SEC. 3.

No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.